The Albany Law Journal. A Monthly Record of the Law and the Lawyers. It is with great pleasure that the ALBANY LAW JOURNAL has observed the appointment and speedy confirmation of the Hon. Charles S. Francis, of Troy, N. Y., as minister from the United States to Greece, Roumania and Servia. Mr. Francis, like his honored father solicited from members of the bar and those interested in legal before him, has been for many years, the ed Published by THE ALBANY LAW JOURNAL COMPANY, Albany, NY. Contributions, items of news about courts, judges and lawyers' queries or comments, criticisms on various law questions, addresses on legal topics, or discussions on questions of timely interest, are proceedings. [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters should be addressed to THE ALBANY LAW JOURNAL COMPANY.] relating to advertisements, subscriptions or other business matters Subscription price, Three Dollars per annum, in advance. Single number, Twenty-five Cents. ALBANY, N. Y., FEBRUARY, 1901. Current Topics. N day of the present O` itor and proprietor of the Troy Times, and like his father, he now goes to the same post of honor the elder so long held. The elder Francis held three diplomatic missions - to Greece, to Portugal and to Austria-Hungary, resigning a brilliant diplomatic career to resume work on the paper he founded. During the three years of the late John M. Francis' stay at Athens, the son acted as his father's secretary. Another interesting coincidence is the fact that Mr. Francis is of the called upon to same age his father was when a minister to represent the United States as minister to office he has ever consented to occupy, and Greece. It is the first elective or appointive that he will fill it with distinction there can be Monday, the four the centennial anniversary of John Marshall's assumption of his seat as chief justice of the Supreme Court of the United States. The event will be appropriately commemorated by the bench and bar throughout the Union. In the State of New no manner of doubt. A native of Troy, he York it will be celebrated in this, the Capital graduated with honors from Cornell, and has City, under the joint auspices of the New been for years one of the most active and in York State Bar Association and the Associa fluential of the trustees of his alma mater. a record which still stands as the world's in tion of the Bar of the city of New York. The While at Cornell also, Mr. Francis acquired Court of Appeals will adjourn in recognition a love of boating which has never left him. He won the single-scull championship of the of the occasion. A meeting will be held at 2.30 P. M. in the assembly chamber, Chief university and the intercollegiate scull chamJudge Alton B. Parker, of the Court of Ap-pionship in 1876 on Saratoga Lake, making peals presiding, at which an oration upon Chief Justice Marshall and his work will be tercollegiate record. The passion for the delivered by the Hon. John F. Dillon, of manly exercise of boating has descended from New York city. In the evening, at 8.30 father to son, for John M. Francis, who bears o'clock, at the Fort Orange Club, a reception the honored name of his grandfather, in 1899, won the single-scull championship of Cornell, will be given by the two bar associations, to 1 which all members of the bar are invited. as his father had done twenty years before. The celebration has assumed a national character, and, in many places, in addition to purely legal gatherings, large popular meetings will be held, at which eminent speakers to a brilliant family record. will discourse upon Marshall's inestimable ' services. It is sincerely to be hoped that the Empire State will not be behind any of the others in its recognition of the historical importance of the occasion, and that in pursuance of this determination as many lawyers as can possibly make it convenient to do so will be present at the exercises in this city. VOL. 63. No. 2 The new minister to Greece is prominent in business and social life, is in the prime of his powers, and promises to add still farther lustre It is no exaggeration whatever to say that the recent meeting of the New York State Bar Association, a report of whose proceedings is given in other columns of the present issue of the ALBANY LAW JOURNAL, was the most successful from every point of view in its history. The attendance probably reached "high-water mark," and the interest seems to have been in proportion to the numerical strength. A very attractive feature of the meeting was the presence of the Chinese minister to the United States, His Excellency Wu Ting-Fang, whose instructive address before the members of the association on the subject of "Chinese Jurisprudence," is published separately in this issue of the JOURNAL. Minister Wu Ting-Fang but repeated here the success he has attained in other cities throughout the Union. Doubtless the admirable good sense, tact, judgment and diplomacy he exhibited a few months ago during the bloody times in China has done much to create and intensify the feeling of friendliness toward him on the part of the great mass of the American people. In addition to this is the fact that he is well known as one of those progressive Chinese, of the class to which the great Li Hung Chang belongs, who would gradually lead his country out of the mire of dead tradition and played-out custom and superstition to a place by the side of the most enlightened nations, among which its once puny rival, Japan, shines with no borrowed light. Minister Wu certainly is a cultured, exceedingly well-read and well-informed member of his race and is as clever and progressive as he is well informed. It will not be his fault if his nation fails to take the position to which her wealth, population and extent of territory entitle her. With a few such progressive statesmen as Wu Ting-Fang in power, a peaceful revolution in the ancient empire would be a practical certainty. The Bar Association meeting, upon whose success Retiring President Finch, Secretary Wadhams and their colleagues are to be heartily | congratulated, seems to prove not only the suitability of Albany as the meeting place, but to negative the predictions of those opponents of associations in general who seem to have been clinging to the idea that the State Bar Association was decadent. All Americans, and more especially American lawyers, are invited to join with their English brethren in erecting a suitable memorial to the late Lord Russell, of Killowen. The American members of the general com mittee in charge of the project, Chief Justice Fuller, Mr. Joseph H. Choate and Mr. James C. Carter, have issued an appeal to the legal profession and others interested for subscriptions to meet the expense of the work. It is understood that the memorial is to take the form of a seated or other statue, to be placed in the London law courts, and of a replica of the Sergent portrait to be offered to the National gallery. It is to be hoped that the response to this appeal will be prompt and liberal. Lord Russell was too well known to the world to need any encomiums at this time. Aside from his universally conceded ability as a jurist and advocate, and his equally wellknown broad-mindedness and catholicity of spirit, he was deservedly a great favorite with all Americans, largely for the reason that he was hospitable to American ideas and was a sincere admirer of the great young republic which, equally with the mother country, still mourns his untimely death. The retirement of the irascible and erratic Chandler from the United States senate, which is assured as result of the senatorial contest in New Hampshire, will be regarded with complacency if not with positive relief by a great many in as well as out of the senate chamber. He has been in the political arena since 1862, when he became a member of the New Hampshire house of representatives. His successor, Henry E. Burnham, was born in Dumbarton, N. H., in 1844, was graduated from Dartmouth in 1865, was admitted to the New Hampshire bar in 1868, was judge of probate for Hillsboro county, 1876 to 1879, a member of the house of representatives in 1873-4, and of the constitutional convention of 1899. He is a member of the present house of representatives. A very large amount of uncomplimentary criticism has been indulged in by many of the newspapers of the country over the action of President McKinley in appointing a son of Justice Harlan, of the United States Supreme Court, attorney-general to Porto Rico, and a son of Justice McKenna, of the same court, a major of volunteers, promoting him, as we are told he did, over the heads of 118 other of the people's representatives was sustained by the overwhelming vote of the people themselves. The problems now before the nation arise from the government of our new possessions. In his recent Ann Arbor address, Gen. Harrison discussed them with such profound learning and fervor of conviction that his opinions demand the serious consideration of every American. He bases his entire argument on the self-expansion of the Constitution. Annexation ipso facto, he says, extends the document over annexed territory. It becomes operative therein proprio vigore, and confers on the inhabitants our Bill of Rights and the civil and political franchises of American citizens. Congress, therefore, cannot govern the islands with plenary power, but is subject to all constitutional limitations. HISTORY OF PROPRIO VIGORE DOCTRINE. lieutenants and the entire list of captains of the army, while the cases involving the government's policy toward the newly-acquired territories are pending before the Supreme Court. Some of the papers have even gone so far as to charge that the appointments amount to a deliberate attempt on the part of the executive to influence the two judges in rendering their decision. Of course, all this is extremely absurd. We surely haven't that sort of men on the Supreme bench nor that sort of man in the executive chair. To suppose that the appointment of Mr. Harlan was deliberately made to curry favor with his father, or to affect the coming decision, seems too preposterous to be entertained for a moment; at all events, the senate seems to have thought so, for it very promptly confirmed the nomination by a vote of 43 to 21. Doubtless the appointment referred to was one of those "coingular singulances," with which life is well punctuated, at the same time, there will be quite a little natural curiosity, now that there has been so much pother about it, to see how Mr. Justice Harlan votes, when the time comes. And really, now that we think of it, we don't see that there would be any gross impropriety in Mr. Justice Harlan and his colleague refusing to take part in the decision of these colonial questions. Otherwise, we should think that in view of all the allegations and insinuations that have been made, their position would be a somewhat embarrassing one. The people seem to be exceedingly maintained that the Constitution did not “extend jealous of the Supreme Court's honor, and, like Caesar, with respect to his bewitching wife, they prefer that it should always be and remain above suspicion. I. What is the history of this doctrine? Prior to the adoption of the Thirteenth Amendment the Constitution authorized slavery; in States only, said the North; in States and territories also, said the South. The issue was political, and after long debate congress enacted first the Missouri compromise act and then other statutes excluding slavery from the territories. But with each annexation of new territory, the struggles in congress broke out afresh, and in the crisis of 1847, during the debates on the Wilmot proviso and Oregon bill, “Calhoun came out with his new and the Constitution and the instantaneous transportasupreme dogma of the transmigratory function of tion of itself in its slavery attributes into all acquired territories" (2 Benton, 713). Finally, in 1849, in the last hours of the thirtieth congress, Calhoun caused a rider to be introduced to the general appropriation bill, which again precipitated the entire pro-slavery agitation in its most violent form. In the discussion that followed Webster to the territories." Calhoun replied: "I am very happy, sir, to hear this proposition thus asserted, for it will have the effect of narrowing very greatly * the controversy between the North and South as waves. CALHOUN'S SLAVERY CREED. Calhoun constructed his creed with his most inexorable logic. The Constitution authorized slavery; annexation ipso facto extended the Con stitution; the Constitution proprio vigore operated Florida, Missouri and Arkansas. During sixtywherever extended and overruled all laws inconsist- three years congress thus continued to make laws ent therewith. Hence the Missouri compromise and all other federal and all territorial statutes prohibiting slavery in the territories, he argued, were unconstitutional and void; hence, also, any future similar legislation would be unconstitutional and void; and hence, finally, slavery would follow the Constitution, and the Constitution would follow the flag wherever American sovereignty extended. DENOUNCED BY LINCOLN CONVENTION. Calhoun died, but his dogma survived and finally became the great issue in the momentous election of 1860. The Breckinridge convention was for it; the Lincoln convention was against it, and so far as the Douglas and Bell conventions expressed any opinion they opposed it. Section seven of the Lincoln platform reads: "The new dogma that the Constitution of its own force carries slavery into any or all of the territories of the United States is a dangerous political heresy, at variance with the explicit provisions of that instrument itself * * is revolutionary in its tendency and subversive of the peace and harmony of the country." The issue thus joined was submitted to the people, and Lincoln was elected, Breckinridge receiving only 845,763 votes out of 4,667.353. This was a decision upon the political aspects of the question by the highest authority, the sovereign people. From this election the South appealed to the arbitrament of arms and was again defeated. * If any political question, any rule of interpretation, any view of the Constitution can be settled by the people who made it, then this doctrine originated by Calhoun and now resurrected and advocated by Gen. Harrison, may be claimed to be forever settled and laid at rest. OUR PRACTICE FOR 114 YEARS. II. Originally the Constitution was operative in the thirteen States which ratified the document (Art. VII, sec. 1). Those States were a mere fringe along the Atlantic; but we have since expanded and annexed over 3,250,000 square miles of new territory. What rule of practice has congress observed in extending the Constitution over this vast domain? The ordinance of 1787 was enacted by the confederation before the federal Constitution was adopted. Every territory organized out of the northwestern lands had a vested right to it, guaranteed by article VI of the Constitution (14 Pet. 417). It was to be expected, therefore, that congress would extend the ordinance, as each new territory was successively organized out of the vast northwestern grant. What more logical procedure, too, than that congress should harmonize its entire practice and extend the same ordinances not only to the northwestern territories, but to all new ter-, ritories? This in fact it did, and by successive acts extended the ordinance of 1787 to every territory organized prior to 1850 except Louisiana, for the successive territories, irrespective of the Constitution, and often even in conflict therewith. Many provisions were common to both documents; many in the ordinance were not in the Constitution; but no less than sixteen of the civil rights of the Constitution were not in the ordinance at all, including some of the most essential guaranties of personal liberty. Even the treason clauses, to which Gen. Harrison refers, were never specifically extended to a single territory prior to 1850. In Orleans territory, which existed from 1804 to 1812, there was an established church, a clergy paid out of the public treasury, a son could not sue without consent of his father, certain criminals were not only denied jury trials but could be executed by the head of the family without trial, a separate port law existed for New Orleans, and lower duties were charged at that port on French and Spanish imports by twenty-five per cent than elsewhere in the United States. Of this government Rodney, of Delaware, said: "It shows that congress have a power in the territories which they cannot exercise in the States, and that the limitations of power found in the Constitution are applicable to the States, not to the territories." Yet its validity has been sustained repeatedly by the Supreme Court. CONSTITUTION EXTENDED AFTER 1850. In 1850 congress organized the territory of New Mexico and enacted that the federal Constitution should extend thereto so far as applicable. Since 1850 as each new territory was organized, congress inserted in the organization act a substantially similar provision. Such has been our practice for 114 years. From 1787 to the present day, every president, every congress, all parties - Republicans and Democrats, Federalists and Whigs-believed, and acted on the belief, that the ordinance of 1787 and not the federal Constitution, was the fundamental law of the territories, with few exceptions, prior to 1850, and that since 1850 the Constitution has been made operative merely as statutory law over new territories, when and to such extent as congress determined by special enactment. Never in our history has anyone in authority assumed that annexation ipso facto extended the Constitution nor that it existed in the territories proprio vigore. PROPRIO VIGORE ANALYZED, III. But how can the Constitution extend anywhere proprio vigore? What does proprio vigore here mean? Absolutely nothing. A constitution is only an organic law; it has no inherent vitality, no life, no innate power of migration or expansion. It is not a soul, that Gen. Harrison or Virgil or some other Pythagorean might claim transmigrates proprio vigore, from one political body to another, animating each with its own vitality. It is a creature not a creator. It does not act, it regulates |